"Pong was designed so you could participate in athletics while maintaining a firm grip on a can of beer." -- Al Alcorn, co-founder of Atari

Saturday, May 17, 2014

Led Zeppelin sued again (and copyright law, Tolkien and elves)

Note 1: I didn't proofread, edit, or spellcheck this. This is the web, FTLOG. Let the errors go.

Note 2: Applicable videos are below, after the text.

There's a detailed story in Businessweek about the latest copyright infringement lawsuit against Led Zeppelin, one of my favorite bands. I've read most of the biographies and sagas about LZ, plus I have all their music and videos. With that level of interest, I've followed the lawsuits. The suits ask interesting questions of us: what is a "basic" sound that simply exists for anyone to create a variation of, what is a song that loosely inspired another, and when is borrowing considered copying (or stealing) under the law? I feel bad for judges and juries who have to sort these things out, because it's an example of human culture being shoved into a rectangular box, and it can't possibly fit. That's probably why most of these lawsuits are settled prior to an official ruling.

These kinds of lawsuits exist in nearly all aspects of life: technology -- hardware and software, books and other writing, cars, etc. I once read that 99% of all cell phones sold in the world yield some of the profits to Microsoft because the company owns so many technology patents. Companies like Microsoft, Apple, Google, and countless others, often buy companies not for their products or services, but to acquire the patent portfolio. It's complicated and fascinating.

The latest lawsuit against LZ involves Stairway to Heaven, which sounds a lot like a song called Taurus, by the band Spirit. Does that mean it's copyright infringement? Hard to say. Many people have tried to say LZ's song White Summer (sometimes called Black Mountainside or White Summer / Black Mountain Side) is theft of a Bert Jansch song. To make things more interesting, Jimmy Page started doing the song with The Yardbirds, before LZ was formed.

Jansch is (was) a British folk guitarist and singer who did his own version of the song, which he called Black Waterside. Turns out, Jansch's song is similar to a song called Mustapha, by Davy Graham, which came out a couple of years before Jancsh released his own version. Jansh's song is also similar to Graham's guitar version of She Moved Through the Fair. Some say LZ should credit and pay Jansch and Graham. However, Black Mountainside is a British (or maybe Scottish, I can't remember) folk song dating back hundreds of years. This makes it fair game for anyone to use for inspiration, and is likely the reason LZ hasn't been sued over their version.

Another area of creativity I've enjoyed, and one that intersects with Led Zeppelin, is fantasy novels -- although not for many years. There just isn't enough good fantasy out there to get fired up (with a few notable exceptions). Tolkien is, of course, the Founding Father, and has never been bettered. When I plowed through The Lord of the Rings as a kid, I thought it was the most creative thing anybody had ever produced. I found out it's not nearly as creative as I thought, starting with elves.

Elves existed in popular culture in Celtic and Dark Age Britain, and probably most Celtic areas, at least a thousand years before Tolkien came along. They were thought to exist in a parallel universe, traveling back and forth between their own world and ours through known gateways. The Isle of Avalon in Arthurian mythology is the most famous of these gateways. Myrlin the magician, of Arthurian mythology, could travel freely between both worlds, and he is rendered as Gandalf in LOTR. The elven folklore was so powerful that England's first king, Alfred, is associated with elves. Alfred, btw, was spelled Aelfred at the time, with the A and E combined in the Old English ash character. Today's "alf" could just as easily have been rendered "elf". The name means, literally, "elf councillor". One had to be very important to give advice to the elves, as the people of the time believed, because the race was considered wise and mysterious. In LOTR, Frodo was formally named Elf Friend by the elves. It was a high honor, borrowed by Tolkien wholly from real folklore that existed for thousands of years.

To this day, there is some debate about whether "Alfred" was the name of the king, or his title, or both. The way people thought in the 9th century was so different from our own, we may never know. My opinion is that if a royal family in 9th century Anglo-Saxon / Danish England named a second or third son, as Alfred was, A Councillor to Elves, they would have been viewed as incredibly arrogant. Others probably gave him the title, and it was assumed as his name. This was fairly common at the time -- choosing, or adopting a name chosen by others, after attaining a high office. Midieval kings did this as a matter of routine. This ancient history can be seen today in the way Popes change their name upon attaining the office.

As for Tolkien, his major works were loosely designed to provide a creation myth for Great Britain, so they needed to feel like they originated in the Dark Ages or earlier -- hence the similarities to the folklore and literature of the period.

If you read the Niebelungenlied (sp?) and the Kalevala (sp?) and Arthurian literature and some other Dark Age stories, you quickly discover that Tolkien is not nearly as creative as most people seem to believe. He had some novelties, and was a great writer, and crafted a heavyweight story on things that mostly existed earlier. He plagiarized nothing, yet invented little. His greatness was the story and the writing. Magic rings? Like elves, commonplace for the era, and not invented by Tolkien. Today we see an echo of this ancient history whenever a wedding ring is placed on a finger.

Tolkien was influenced by many sources, and he in turn was a major influence on Robert Plant, the primary lyricist for Led Zeppelin. Many LZ songs contain references to LOTR. And, just like Tolkien's writings, many LZ songs can be traced back to older sources -- other rock songs or earlier blues songs, but that doesn't necessarily mean theft. If it was that easy, Robert Jordan would have been sued by Tolkien's estate for the Wheel of Time series of fantasy novels. Tennyson's estate, if it still existed, would sue both, except that copyrights expire after awhile. The descendants of Beowulf's author would sue everyone. Tolkien was, after all, an Anglo-Saxon (Old English) scholar and considered one of the best translators of Beowulf. (update: May 19 was announced Tolkien's translation is being published.)

A recent lawsuit was that of Dan Brown over his authorship of The Da Vinci Code. The authors of a non-fiction (although highly speculative) book called Holy Blood, Holy Grail sued Brown because, they said, Brown fictionalized their book. I don't believe Brown denied this, and after reading both of those books, I can say he would have been foolish to deny it -- they're nearly identical at the idea level. Brown won because, as the British court said, an idea can't be copyrighted. The main idea in both books is the Holy Grail, a powerful motif of Arthurian mythology, which greatly influenced Tolkien, who greatly influenced Robert Plant. This why I wrote this long-winded post -- so many parallels, so many connections, so much gray area, and occasionally a court of law has to sort out the meaning of it all and how the law applies. Ridiculous and fascinating. Oh, I also wrote this because I love LZ and Tolkien, and also because I believe law must exist, and because it's a mostly rational concept that deals with irrational human beings, it will never function well.

So, what's the dividing line between an idea and an original work of creativity, protected by copyright laws? LZ will win the new lawsuit if they can demonstrate that the song Taurus had nothing to do with Stairway to Heaven or that Taurus was merely the idea that prompted an original work. The Businessweek article shines a light on this: "Ultimately, the legal test isn’t what experts say. Under U.S. law, the standard a jury or judge would apply is whether the song in question sounds like a copy to an ordinary lay listener." Tolkien's estate will never have to deal with these types of lawsuits because the copyright on Dark Age literature is long expired, and also because the exact authorship of many of the works is impossible to prove, but these are the only reasons.

I've read most of the source material that influenced Tolkien, such as the Arthurian stuff, the Kalevala, the Norse sagas, the Niebelungenleid, Beowulf, the Anglo Saxon Chronicle, Taleisin, Aneirin, etc. I've also listened to most LZ music, as well as the source material. The parallels are uncanny. If LZ stole Taurus and re-worked it as Stairway to Heaven, then Tolkien stole Gandalf from Old Welsh writers. I don't hold it against Tolkien -- I don't consider him a thief -- and I don't consider LZ a thief over Taurus. The inspiration seems clear, but I think it stops well short of copyright infringement.

I'd give you 10:1 the suit is settled out of court with a small monetary payout and a new credit appearing on future releases of Stairway to Heaven.